Public Review Draft PORT OF HOOD RIVER RULE PUBLIC PRIVATE PARTNERSHIPS FOR BRIDGE PROJECTS AND BRIDGE PROJECT ACTIVITIES

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1 PORT OF HOOD RIVER RULE PUBLIC PRIVATE PARTNERSHIPS FOR BRIDGE PROJECTS AND BRIDGE PROJECT ACTIVITIES. PURPOSE AND INTENT OF RULE () The primary purpose of this Rule is to describe the process for developing and constructing a replacement bridge between Hood River, Oregon and White Salmon, Washington if undertaken as a Public-Private Partnership with the Port of Hood River. 0 () This Rule implements the authority granted to the Port by ORS.0 to ORS. to enter into public-private partnership agreements in connection with a Bridge Project, and is adopted in compliance with ORS.0()(b) requiring the Port to adopt rules that substantially conform with the Department of Transportation rules implementing ORS.00 to.. Nothing in this Rule shall be interpreted as limiting the Port s authority under other state statutes, including but not limited to its authority to exempt contracts from public bidding under ORS C.().. DEFINITIONS As used in this rule: 0. "Agreement" means a written agreement, including but not limited, to a contract for a Bridge Project or Bridge Project Activity that is entered into under Section of Chapter 0 Oregon Laws 0.. Bridge means the existing Port interstate bridge as of the effective date of this Rule, or a completed bridge that results from a Bridge Project, and any Related Facilities.. Bridge Project means a project to construct, reconstruct, or replace a bridge that spans the Columbia River, and any Related Facilities, that a Private Entity undertakes in accordance with an Agreement with the Port of Hood River that requires the Private Entity to fund, in whole or in part, the construction, reconstruction, or replacement of a Bridge.. Bridge Project Activity means an activity that a Private Entity undertakes in accordance with an Agreement with the Port of Hood River to plan, acquire, finance, develop, design, construct, P a g e

2 0 reconstruct, replace, improve, maintain, manage, repair, lease, or operate a bridge, Bridge Project, or any Related Facility.. Commission means the Port of Hood River Commission.. Days means calendar days unless specified as business days.. Direct Negotiations means the undertaking of negotiations between the Port and a single selected proposer regarding an Agreement, as described in paragraph (a) of subsection... Director means the Executive Director of the Port of Hood River, a Port employee authorized in writing by the Executive Director to act under this Rule in the place of, on behalf of and with the authority of the Executive Director to perform specified Executive Director tasks, or a Port employee authorized by the Commission to act in the place of and with the authority of the Executive Director under this Rule if the Executive Director is unavailable.. Evaluation Panel means the panel of persons appointed by the Director to evaluate a proposal for a Bridge Project or Bridge Project Activity under subsection. of this Rule. 0. Key Person means an official in a Managing Entity, Ownership Entity, or Major Subcontractors who plays a critical role in running the enterprise or a critical role in a proposal and whose loss or unavailability could jeopardize the success of the proposal. Rule.. Lobbying has the meaning given that term in paragraph () of subsection. of this. Local Government has the meaning given that term in ORS.. 0. Major Partner means a Private Entity that has an ownership interest in excess of % in a Managing Entity, Ownership Entity, or Major Subcontractor, as applicable.. Major Subcontractor is the member of the Team, other than the Managing Entity, designated in the proposal to have primary responsibility for one or more of the following: project development, engineering, architecture/design, project management, construction (including any construction subcontractors with subcontracts of at least 0% of the construction budget), legal, financial, operations, or maintenance.. Managing Entity means the Private Entity or Private Entities authorized to execute Agreements for the proposal and that will have primary management and oversight responsibility for the P a g e

3 0 0 performance of the obligations under an Agreement. The Managing Entity may also be a Major Subcontractor or an Ownership Entity.. Negotiation Team shall have the meaning provided in paragraph () of subsection. of this Rule.. Notice of an Unresponsive Submission means a written notice sent by the Director to a proposer stating that (a) the proposal was deemed incomplete or otherwise unresponsive to the requirements of these Rules or the Solicitation Document; (b) the proposal will not be considered further, and (c) the reasons for the determination.. Organizational Disclosure Requirements means any information, certifications, forms, or attestations required regarding the qualifications, expertise, experience, financial backing, integrity, ownership, litigation and claims history, organizational structure, and decision-making structure of any Team member, Key Person, or Major Partner associated with a proposal.. Ownership Entity means a Private Entity or Private Entities anticipated to have an ownership interest in the Bridge Project of at least % or that are the managing partners of an ownership group anticipated to have an ownership interest in the Bridge Project of at least % 0. Port means the Port of Hood River.. "Private Entity" means any entity that is not a unit of government, including but not limited to a corporation, partnership, company, nonprofit organization, joint venture, or other legal entity, or a natural person.. Project means a Bridge Project or Bridge Project Activity.. Public-Private Partnership or PPP means an arrangement between the Port and one or more Private Entities that includes a Private Contribution and provide for the design and construction, maintenance and operation, or ownership of the Bridge Project or Bridge by one or more Private Entities. The use of the word partnership in all contexts under this Rule is not intended to mean or to confer on the relationship formed between the Port and a Private Entity any of the attributes or incidents of a partnership under common law or under ORS chapters and 0.. Private Contribution means resources supplied by a Private Entity to accomplish all or part of the work on a Bridge Project, including but not limited to, funding; financing; providing income or P a g e

4 0 0 revenue; in-kind contributions of engineering, construction, or maintenance services; or other items of value provided by a Private Entity.. Related Facilities means real or personal property for: (a) operating, maintaining, renovating, or facilitating the use of a Bridge; (b) providing goods and services to people who use a Bridge; or (c) generating revenue that can reduce tolls or that will be deposited in an account established under an Agreement.. Responsive Submission means a Submission that complies with all requirements, terms, and conditions of a Solicitation Document and this Rule.. Rule means this rule of the Port of Hood River regarding public-private partnerships for a Bridge Project or Bridge Project Activity.. Sensitive Business, Commercial or Financial Information means information submitted by a Private Entity in connection with a proposal for a Bridge Project or Bridge Project Activity, which complies with the criteria in paragraph () if subsection. of this Rule, and which is exempt from public disclosure under Oregon law and this Rule.. Solicitation Document means a written request for proposals, request for qualifications, or any similar call for proposals or proposers issued by the Port in connection with a Bridge Project or Bridge Project Activity, including any addenda thereto. 0. Solicited Proposal means a proposal submitted in response to a Solicitation Document.. Submission means a proposal or a statement of qualifications submitted in response to or in connection to a Solicitation Document.. Submission Deadline means the date and time set forth in a Solicitation Document by which a Submission is required to be received by the Port at a required location.. Team means the Managing Entities, Ownership Entities, Major Subcontractors, and other significant participants proposed to undertake a Bridge Project or Bridge Project Activity.. Term Sheet means a non-binding agreement, approved by the Commission pursuant to subsection. of this Rule, specifying preliminarily agreed-upon terms for preparing the final Agreement or Agreements. P a g e

5 0. Unresponsive Submission means a Submission that does not comply with all requirements, terms, and conditions of a Solicitation Document and this Rule.. Unsolicited Proposal means a proposal to the Port by a Private Entity for a Bridge Project or Bridge Project Activity that is not submitted pursuant to a Solicitation Document.. GENERAL AUTHORITY TO ENTER A PUBLIC-PRIVATE PARTNERSHIP FOR A BRIDGE PROJECT OR A BRIDGE PROJECT ACTIVITY () The Port may, in accordance with ORS.0 to ORS. and this Rule, solicit proposals or qualifications and enter into Direct Negotiations or Competing Negotiations for a Public- Private Partnership to plan, acquire, finance, develop, design, manage, construct, reconstruct, replace, improve, maintain, repair, operate, or own a Bridge Project or Bridge Project Activity if the Commission has determined that such an approach has the potential to accelerate cost-effective delivery of the Project or reduce the public cost of carrying out the Project. () The Port shall not accept or consider an Unsolicited Proposal for a Public-Private Partnership for a Bridge Project or Bridge Project Activity, unless and until this Rule is amended to allow consideration of Unsolicited Proposals. () The Port may select one or more proposers for the purpose of negotiating agreements for a Bridge Project or Bridge Project Activity under Section of this Rule, or may reject all proposers. With regard to a proposer selected for negotiations, the Port may enter into negotiations for the full scope of their proposal or for any part or parts of their proposal. 0 () The selection of a proposer or proposal for negotiations does not constitute a final selection of such proposer or proposal nor prohibit the Port from considering other proposers or proposals. Final selection of a proposer or proposal is subject to the Commission s approval of an Agreement.. SOLICITATION OF STATEMENTS OF QUALIFICATIONS AND/OR PROPOSALS FOR A PUBLIC- PRIVATE PARTNERSHIP FOR A BRIDGE PROJECT OR BRIDGE PROJECT ACTIVITY. Solicitation Documents () The Port may solicit proposals for a Bridge Project or one or more Bridge Project Activities by issuing a Request for Qualifications (RFQ), a Request for Proposals (RFP), or a multi-staged RFQ/RFP P a g e

6 (each referred to herein as a Solicitation Document ), as determined by the Port. Before issuing a Solicitation Document, the Solicitation Document shall first be approved by the Commission. () Each Solicitation Document shall specify the requirements for the Submission content, and criteria and procedures under which Submissions will be evaluated and selected, either by reference to this Rule or by supplementation or amendment to the provisions of this Rule. Nothing in this Rule is intended to limit the scope of the Port s discretion or authority to develop evaluation criteria and processes for a Solicited Proposal as long as the criteria and processes comply with the requirements of ORS.0. 0 () The Port may require a proposer to pay a proposal review fee, in an amount prescribed in the Solicitation Document, to accompany a Submission. If required by the Solicitation Document, the Port shall not accept or consider a Submission that is not accompanied by payment of the required fee. () Following approval of a Solicitation Document by the Commission, the Port will furnish reasonable announcement of the Solicitation Document, as determined by the Port, for the purpose of fostering and promoting competition. The announcement will indicate where, when, how, and for how long the Solicitation Document may be obtained and generally describe the work. The notice shall specify the date and time by which the response to the Solicitation Document must be submitted to the Port (the Submission Deadline ) and may contain any other appropriate information. The Port may charge a fee or require a deposit for the Solicitation Document. The Port shall announce the availability of the Solicitation Documents as follows: 0 (a) Mail the announcement of the availability of Solicitation Documents to Private Entities that submitted a writing to the Port expressing an interest in the Port s Bridge Project or Bridge Project Activity procurements; (b) Place the announcement on the Port s internet web site; (c) Place the announcement in the Daily Journal of Commerce and any other applicable publications determined by the Director; and (d) Use any other method the Director determines will promote competition. () The Port may require potential proposers to register its name, contact information, and areas of interest as a prerequisite to receiving the Solicitation Document. P a g e

7 0 0 () Following the issuance of the initial Solicitation Document, the Port may from time to time issue an addendum to the Solicitation Document requesting additional information, the addition or deletion of project features, alternative financing terms, additional Organizational Disclosure Requirements, and other materials not included in the initial Solicitation Document or initial Submissions. (a) Except as described in paragraph ()(c) below, before issuing an addendum to a Solicitation Document, the addendum shall first be approved by the Commission unless the Commission otherwise authorizes the Director to issue addenda without Commission approval. (b) Notice of the availability of an addendum shall be provided as set forth in paragraph () of Section 0 of this Rule. Upon the Port s issuance of notice of availability of an addendum, the provisions of the Solicitation Document shall be as amended or clarified by the addendum and any previous addenda. Each addendum shall include a deadline for the Submission of requested materials. The burden of responding to an addenda accurately and completely resides with the proposer. Failure of a proposer to adequately or timely respond to such addenda shall constitute sufficient grounds to reject the applicable Submission. (c) The Director may issue an addendum that clarifies and does not otherwise revise a Solicitation Document or previous addendum, without the approval of the Commission. () The Port may issue a request for information, request for interest, or other preliminary documents to obtain information useful in preparing a Solicitation Document.. Eligible Proposers, Team Members, Key Persons, and Major Partners () All members of the proposed Team and their Major Partners and Key Persons: (a) Must be able to legally operate and fully perform their proposed role and responsibilities under the Submission in Oregon and Washington, or provide evidence that they will have such ability prior to entering an Agreement; and (b) Have or will have the ability to obtain the appropriate financial, material, equipment, personnel, and expertise necessary to fulfill their proposed roles and obligations under the Submission. () No Submission will be considered from a Team in which a member of the Team, a Major Partner of a Team member, or a principal officer of a Team member or a Major Partner: P a g e

8 (a) Is disbarred, suspended, disqualified, proposed for debarment, or declared ineligible for contracts by any federal agency or agency of the State of Oregon; or (b) Has, within the last -year period, been convicted of or had a civil judgment rendered against it for commission of fraud or a criminal offense in connection with obtaining or attempting to obtain a public (federal, state, or local) contract or subcontract; violation of federal or state antitrust statutes relating to the Submission of bids, proposals, or qualifications; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion or receiving stolen property.. Contents of a Proposal or Statement of Qualifications 0 () A Submission must include all information required by this Rule and the Solicitation Document. Unless otherwise revised in the Solicitation Document, a Submission shall be formatted and include the information set forth in Exhibit. of this Rule. All information must be complete, accurate, current, and truthful. The failure or refusal of any proposer to provide complete, accurate, current, and truthful information requested by the Port shall be sufficient grounds for rejection of the Submission. () A Submission must be in response to the specific language in a Solicitation Document, an addendum to a Solicitation Document, or a written notice from the Port; proposers shall not make any assumptions based on verbal statements or written statements not contained in a Solicitation Document, addendum to a Solicitation Document, or a written notice from the Port. 0 () In addition to the information required by this Rule and the Solicitation Documents, the Port may request in writing, electronically or otherwise, from time to time such additional information, Organizational Disclosure Requirements, or other materials from the proposer as the Port deems beneficial to understanding or reviewing the Submission. Failure by a proposer to provide such information or material within the time specified by the Port in the writing, or if no time is specified within a reasonable time as determined by the Port, shall be sufficient grounds for rejection of the proposal. In addition, the Port may undertake such reference checks and make such other inspections of Team members as the Port may find beneficial to reviewing a Submission. P a g e

9 () All aspects of the Submission must comply with all applicable federal, state, and local laws and regulations, including but not limited to the provisions of and this Rule. () A cover letter must be attached to or incorporated in a Submission that: (a) Incorporates a statement to the effect that by responding to the Solicitation Document, the proposer acknowledges for itself and its Team that it agrees to and accepts all terms and conditions under this Rule and the Solicitation Document, and Submission. (b) Is signed by a duly authorized representative(s) of the Team making the 0 () The Submission must include duly executed copies of all Organizational Disclosure Requirements, including but not limited to any conflicts of interest forms, certifications, and attestations, required under the Solicitation Document. () The proposer shall clearly identify any Sensitive Business, Commercial, or Financial Information in the proposal or statement of qualification that the proposer considers exempt from public disclosure under Oregon state law, as described in Section of this Rule. () All pages of a proposal or statement of qualification shall be double-sided and numbered. Each copy of the proposal or statement of qualification must be contained in a single volume where practicable. An electronic version of the proposal and any supporting material submitted as part of the proposal or statement of qualification shall also be provided.. Obligation to Update Changed Information 0 () Any change in the status of the proposer, the Team, any of the Key Persons, or any Major Partners must be reported to the Port within fourteen () calendar days of the known change, and those whose status has changed or who have been added are required to satisfy all Organizational Disclosure Requirements within the fourteen day period. For purposes of this section, a change in the status of a proposer includes reorganization of the business structure or corporate structure of the proposer, Team Member, or a Major Partner amounting to a transfer of over twenty five percent (%) of the entity s ownership. P a g e

10 () Any replacement or additional Team member, Key Person, or Major Partner must meet the requirements set forth in subsection. of this Rule. () The burden of satisfying the Organizational Disclosure Requirements, both in terms of producing the disclosures and assuring their accuracy and completeness, resides with each proposer. Failure to meet this burden shall be sufficient grounds for rejection of the Submission.. Communications during the Solicitation, Evaluation, and Negotiation Process 0 () From the date on which the Commission approves a Solicitation Document to the date on which the Commission approves an Agreement or terminates the solicitation process without approving an Agreement, all communications, whether direct or indirect, between the proposer, including any Team member, agent, or representative of the proposer, and the Port shall only be with the contact person or persons designated by the Director, and not with any other staff member, Commission member, or other official, agent, or representative of the Port. 0 () Unless otherwise authorized in writing by the Director or his or her designee as described in paragraph () of this subsection, no proposer or potential proposer, agent or representative of a proposer or potential proposer, Team member, or agent or representative of a Team member shall engage in Lobbying, as described in paragraph () of this subsection, between the date on which the Commission approves a Solicitation Document and the date on which the Commission approves an Agreement or terminates the solicitation process without approving an Agreement. () Lobbying under this Rule shall include any direct or indirect contact, not authorized under paragraph () of this subsection, in which a proposal for a Bridge Project or Bridge Project Activity is discussed, whether in person, in writing, or electronically, by a proposer or potential proposer or an agent or representative of a proposer or potential proposer (including any member of the Team, or an agent or representative of a Team member) with any member of the Commission; any local, state, or federal official (including presentations to any governmental boards or commissions); or persons (or agents or representatives of persons) engaged in print or electronic media. Lobbying does not include any valid appeal by a qualified proposer under this Rule, provided the appeal is limited to the content and process described in this Rule. 0 P a g e

11 0 0 () The Director may authorize proposers or potential proposers, as applicable, to engage in Public Outreach, if the Director determines such Public Outreach: (i) does not afford any Private Entity an undue competitive advantage and (ii) is in the best interest of the Port. As used in this Rule, Public Outreach shall include any direct or indirect contact with public officials or media that is authorized by the Director. The authorization to engage in Public Outreach shall be in writing and shall describe the specific purpose or purposes for which Public Outreach is authorized, any limitations on the Public Outreach, and the time period during which the authorization is effective. Any proposer or potential proposer, agent or representative of a proposer or potential proposer, Team member, or agent or representative of a Team member authorized to engage in Public Outreach shall only do so under the terms and conditions set forth in the Director s authorization. Any Public Outreach not complying with the terms and conditions in the Director s authorization shall constitute Lobbying under this subsection. () Any violation of the prohibition against Lobbying shall constitute grounds for disqualifying the violator but not the proposal (allowing the Team to replace the violator) or terminating consideration of the proposal of the violator. The Director shall determine whether prohibited Lobbing has occurred. If the Director determines that Lobbying occurred, the Director shall send notice to the violator or violators stating the nature of the violation. () Any proposer or potential proposer receiving notice under paragraph () of this subsection shall have five () business days after receiving the Port notice to file a written appeal of the Director s determination to the Commission stating its reasons why the Director s determination is unwarranted. The Commission may overturn the determination of the Director if the Commission finds that (i) there was not any improper contact or (ii) the contact was unintended or incidental and contact could not have reasonably given the violator or the violator s proposal a competitive advantage. If the Director s determination is not appealed or the Commission upholds the Director s determination that Lobbying occurred, the Commission shall, in its reasonable discretion, impose the appropriate penalty.. SELECTION OF A TEAM OR TEAMS FOR NEGOTIATING AGREEMENT(S) FOR A PUBLIC-PRIVATE PARTNERSHIP FOR A BRIDGE PROJECT OR BRIDGE PROJECT ACTIVITY. Evaluation Panel () Each Submission shall be evaluated by an Evaluation Panel nominated by the Director and approved by the Commission. P a g e

12 () The Evaluation Panel shall be of such size and composition as the Port determines is in the best interest of achieving a credible and technically sound assessment of the proposals, but may not consist of less than three () members, and may be comprised of such Port staff, including the Director, or officials, state and local staff or officials, public representatives, consultants, or other advisers as the Commission may determine. () Under the direction of the Director, the Evaluation Panel shall: (a) Screen each Submission received by the Submission Deadline for its responsiveness to the requirements in the Solicitation Document and this Rule and identify any potential Unresponsive Submission, as provided in subsection. of this Rule; 0 and (b) Evaluate each Responsive Submission, as provided in subsection. of this Rule; (c) paragraph () of subsection. of this Rule. Prepare a final report documenting the results of its evaluation, as provided in. Initial Screening for Responsiveness of Submissions () The Port shall not accept or consider any Submission received by the Port after the Submission Deadline or at a location other than that specified in the Solicitation Document. () Each Submission received by the Submission Deadline at the correct location will be assessed to determine if it is a Responsive Submission, which will receive detailed consideration by the Port, or an Unresponsive Submission, which will not receive detailed consideration. 0 () To be a Responsive Submission, the Commission must find that the Submission: (a) Is duly executed by an authorized representative of the Team; (b) Is accompanied by the fee required by the Solicitation Document, if any; (c) Satisfies all Organizational Disclosure Requirements, including all duly executed forms, certifications, and attestations, required by the Solicitation Document; P a g e

13 (d) Provides all information required by the Solicitation Document; and (e) Rule and the Solicitation Document. Complies with all other applicable requirements, terms, and conditions under this () Any Submission that the Commission finds does not comply with all criteria in paragraph () of this subsection shall be an Unresponsive Submission and shall not be considered. () Following the Submission Deadline, the Director shall cause to be undertaken an initial screening of all Submissions received by the Port by the Submission Deadline, as follows: 0 (a) Each Submission will be reviewed to determine if it (i) is duly executed by an authorized representative of the Team, (ii) is accompanied by the fee required by the Solicitation Document, if any, and (iii) complies with all Organizational Disclosure Requirements, including all duly executed forms, certifications, and attestations required by the Solicitation Document. (b) If any of the items reviewed in paragraph ()(a) of this subsection is found to be deficient, the proposer shall be notified in writing by the Port, and if the proposer has not fully rectified the deficiency or deficiencies in the Port s notice by within five () business days following the date on which notice is provided, as set forth in section 0 of this Rule, consideration of the Submission may be terminated. 0 (c) Each Submission complying with the criteria in paragraph ()(a) of this subsection will be reviewed by the Evaluation Panel to determine if the Submission (i) provides all information required by the Solicitation Document and (ii) complies with all other applicable requirements under this Rule and the Solicitation Document. The Evaluation Panel may request in writing clarifications from a proposer regarding its Submission, and may take such clarifications received from the proposer into account in making its assessment. The Evaluation Panel will report its findings in writing to the Director. () After reviewing the findings of the Evaluation Panel, the Director shall recommend to the Commission a list of those Submissions that are Responsive Submissions, which, subject to Commission approval, will be further considered by the Evaluation Panel, and those Submissions that are Unresponsive Submissions which, subject to Commission approval, will not receive any further consideration, and an explanation of the reasons for the recommendation. The Director shall make the recommendation P a g e

14 available to proposers by issuing a written notice to the proposers or by an electronic posting of the recommendation. () If the Director recommends that a Submission is an Unresponsive Submission, the Director shall promptly convey to the proposer a Notice of an Unresponsive Submission stating his or her reasons for the recommendation. A proposer receiving a Notice of an Unresponsive Submission shall have fourteen () days from the date of notice, as set forth in section.() of this Rule, to appeal in writing to the Port. The written appeal shall explain in detail why the Notice of an Unresponsive Submission was issued in error. If appealed, the Commission shall hear the appeal within fourteen () days after Port receipt of the appeal, unless the time is extended by the Commission. 0 () Each Submission approved by the Commission as a Responsive Submission shall be evaluated by the Evaluation Panel pursuant to subsection. of this Rule. Further consideration of a Submission designated as an Unresponsive Submission shall be terminated upon the Commission s action.. Evaluation of Responsive Submissions subsection.. () The Evaluation Panel shall evaluate each Responsive Submission in accordance with this () In evaluating proposals for a Bridge Project, the following factors must be considered pursuant to ORS.0(): (a) (b) The estimated cost of the Bridge Project; The qualities of the design that the proposer submits, if appropriate, including: 0 (A) The structural integrity of the design and how the design will likely affect future costs of maintaining the bridge; (B) The aesthetic qualities of the design and other aspects of the design such as the width of lane separators, landscaping and sound walls; (C) The traffic capacity of the design; P a g e

15 (D) Aspects of the design that affect safety, such as lane width, the quality of lane markers and separators, the shape and positioning of ramps and curves and changes in elevation; and (E) The ease with which traffic will pass through any toll collection facilities; 0 0 (c) The extent to which the bridge project will involve small businesses. The Port shall encourage small businesses to participate in the bridge project to the maximum extent that the Port determines is practicable. As used in this paragraph small business means an independent business with fewer than 0 employees and with average annual gross receipts during the last three years of not more than $ million for construction firms and not more than $00,000 for businesses that are not construction firms; however, small business does not include a subsidiary or parent company that belongs to a group of firms that the same individuals own or control and that have average aggregate annual gross receipts during the last three years in excess of $ million for construction firms or $00,000 for firms that are not construction firms; (d) The proposer s financial stability and ability to provide funding for the Bridge Project or Bridge Project Activity and obtain, or act as, a surety for the proposer s performance and financial obligations with respect to the Bridge Project or Bridge Project Activity; (e) The experience of the proposer and the proposer s subcontractors in engaging in bridge project activities of a size and scope similar to the proposed Bridge Project of Bridge Project Activity; (f) The terms of the financial arrangement that the proposer accepts or proposes with respect to franchise fees, license fees, lease payments, or operating expenses and the proposer s required rate of return from engaging in the bridge project activity; and including: (g) The terms that the proposer offers for engaging in the bridge project activity, administrative fees. (A) (B) (C) The amount of proposed tolls and administrative fees; Schedules for altering tolls and administrative fees; and Any restrictions or conditions on future increases in tolls or P a g e

16 () In addition to the criteria in paragraph () of this subsection, the Evaluation Panel shall employ any additional criteria set forth in the Solicitation Document, and any addenda to the Solicitation Document, in evaluating a Submission. 0 () If after opening Submissions the Director determines that amendments to the process or criteria in the Solicitation Document or any addenda to a Solicitation Document would be beneficial to the Port, the Director may recommend such amendments to the Commission as an addendum to the Solicitation Document and, subject to the Commission approval, the Evaluation Panel may employ the amended evaluation process or criteria. At least five () days before the Evaluation Panel can use the amended process or criteria in an addendum, the Port shall issue in writing sent to proposers or post electronically the addendum to allow proposers adequate time to address the addendum. () Unless otherwise limited in the Solicitation Document, subject the approval of the Director and, when required, the Commission, the Evaluation Panel may: (a) Request in writing additional information from proposers; (b) Employ outside technical or legal advice; (c) Seek public input; (d) Undertake reference checks of Team members, and (e) Investigate the validity of assumptions and information provided by proposers. 0 () The Evaluation Panel may from time to time request proposers to make presentations regarding its Submission to the Evaluation Panel. Proposers shall be afforded not less than ten (0) business days following written notification from the Evaluation Panel to make such presentations. The format of these presentations will include a formal presentation by the proposer, followed by any questions the Evaluation Panel has pertaining to the Project, proposal, or statement of qualifications. The Evaluation Panel is not limited to asking the same or similar questions to each proposer. If there is an issue to which the proposer is unable to adequately respond during the formal presentation, the Evaluation Panel may, at its discretion, grant the proposer a reasonable period of time in which to submit a written response. P a g e

17 () As part of its evaluation of a Submission, the Port may consult with appropriate state agencies and local governments in Oregon and Washington. Consultation under this Rule will occur in such manner and at such time as the Port considers appropriate in the particular circumstance, and may include but not be limited to: (a) An informal information-sharing opportunity prior to completion of the Port s evaluation of the proposal; (b) Solicitation of comments from the appropriate state agencies and local governments in Oregon and Washington; and (c) Any additional method(s) of consultation appropriate under the circumstances. 0 () Upon the completion of its evaluation, the Evaluation Panel shall transmit to the Director a final report and any supporting materials the Evaluation Panel deems relevant. To the extent permitted by law, the report of the Evaluation Panel, including any documentation in connection with its preparation, shall not be subject to public disclosure until such time as the Director issues his or her recommendation under subsection., at which time the report will be made public; provided, however, the Port may redact from the from the publicly disclosed recommendation report any Sensitive Business, Commercial or Financial Information that is exempt from disclosure by law.. Director s Recommendation and Commissions Approval of Proposers for Negotiation. Director s Recommendation to the Commission 0 () Following receipt of the Evaluation Panel report under paragraph () of subsection., the Director shall determine if the report is sufficient for the Director to make his or her recommendation to the Commission. If the Director finds that the report of the Evaluation Panel is insufficient to make a recommendation, the Director shall ask the Evaluation Panel for such additional analysis or documentation as the Director deems necessary to make a recommendation. () Following the Director s determination that the report of the Evaluation Panel is sufficient to make a recommendation, the Director shall prepare his or her recommendation to the Commission, which may include a recommendation to: (a) Reject all Submissions and terminate the process; P a g e

18 (b) Select one Submission for Direct Negotiations, and reject all other proposals; (c) Select one Submission for Direct Negotiations, and retain one or more other proposals for possible future negotiations if the initial negotiations are not successfully concluded; proposals; or (d) Select two or more Submittals for Competing Negotiations; and reject all other (e) Such other recommendation as the Director may determine. 0 () Upon the completion of his or her recommendation, the Director shall transmit the recommendation to the Commission along with any supporting materials the Director deems relevant; provided, however, the Port may redact from the from the publicly disclosed recommendation report any Sensitive Business, Commercial or Financial Information permitted by law. The Director shall notify proposers of his or her recommendation by ing proposers, without confirmation of delivery, to the proposer s address as described in paragraph ()(b) of Section 0 of this Rule.. Commission Review and Selection of Proposers for Negotiation 0 () The Commission shall review the recommendation and any supporting materials forwarded by the Director under Section.. If the Commission finds that recommendation and supporting materials transmitted by the Director are insufficient to make a decision, the Commission shall require the Director to obtain such additional information as the Commission deems necessary to make its decision. () If the Commission finds the recommendation of the Director and the supporting materials are sufficient for the Commission to take an action, the Commission as a whole or a sub-committee appointed by the Commission shall review the recommendation and supporting material, including holding any hearings the Commission deems necessary, and may approve, amend, or reject the Director s recommendation, with or without conditions, or take such other actions as the Commission deems in the best interest of the Port, including cancelling the solicitation process or procurement in the Solicitation Document. If the Commission acts to cancel the solicitation process or procurement, the reasons for the cancellation shall be in writing and included in the solicitation file. P a g e

19 () Pursuant to ORS.0()(b), if the Commission s action is to select a single proposal for Direct Negotiations, the action must follow a public hearing in which the elements described in subsection. of this Rule are considered. The Commission shall select a Submission that provides the best overall public value. In determining the best overall public value, the Commission must find that the selected Submission, compared to other Submissions, is likely to: (a) (b) (c) Reduce the cost of constructing the Bridge Project; Accelerate the schedule for completing the Bridge Project; and Reduce the financial risk to the Port and the public. 0 () The Commission may authorize, at its option, Competing Negotiations with multiple proposers as a means of selecting from among the Submissions selected for detailed evaluation. In making this selection, the Commission shall comply with the requirements in paragraph () of this subsection. 0 () Any action by the Commission to approve or disapprove one or more Submissions shall not take effect until the completion of the appeal process set forth in Section.. () Promptly following a Commission action to reject one or more Submissions, the Port will give, electronically or otherwise, written notice to all participating proposers of the Port s action.. Appeals of Port Action to Reject Submissions () A Commission or Director action in which one or more Submissions are rejected may be appealed by an adversely affected proposer in accordance with the provisions of this subsection.. A properly filed appeal will be heard by the Commission or such other body or hearings officer as the Commission may appoint. An appeal that is not fully consistent with the requirements of this Rule shall not be heard. () For purposes of this Rule, a protesting proposer is adversely affected by a Commission or Director action only if: (i) the proposer has submitted a Responsive Submission, and (ii) the Submission was rejected for further consideration by the Commission s or Director s action. () To appeal a Commission or Director action, an adversely affected proposer must submit to the Director a written protest stating the facts and providing explanations that demonstrate the Port: P a g e

20 (a) Committed a material violation of a provision in the Solicitation Document or this Rule in evaluating the Submission or taking the Commission or Director action; or (b) Otherwise abused its discretion in evaluating a proposal or proposals. 0 0 () The written protest must be received by the Port no later than :00PM (Pacific Time) on the th calendar day following the day on which the Port sent notice of the Commission or Director action under paragraphs () or () of subsection. or paragraph () of subsection.. If the Port receives no written protest concerning the action under paragraphs () or () of subsection. or paragraph () of subsection. within the -calendar day period, then the Commission action automatically shall become effective on the th calendar day following the day on which the Port sent notice of the Commission or Director action under paragraphs () or () of subsection. or paragraph () of subsection.. () In response to a protest that complies with the requirements of this rule, the Commission will issue a written decision that resolves the issues raised in the protest. In considering a timely protest, the Port may request further information from the protesting proposer and may undertake any further investigations the Commission finds beneficial. The Port will make its written decision available, by mail or by electronic means, to all proposers identified in the Port s notice.. Negotiation and Approval of Agreements for Bridge Projects or Bridge Project Activities. Negotiation Team () Any Submissions approved by the Commission for negotiation of an Agreement shall be referred to a Negotiation Team nominated by the Director and appointed by the Commission. The Negotiation Team shall be of such size and composition as the Commission determines is in the best interest of the Port, and may be comprised of such Port staff, including the Director, legal counsel, consultants, or other advisers as the Commission may determine. () Under the direction of the Director, the Negotiating Team shall be responsible for Direct Negotiations with a proposer or Competing Negotiations with proposers, as authorized by the Commission, and be subject to any terms or conditions set forth from time to time by the Commission regarding the negotiations.. Legal Counsel 0 P a g e

21 0 () Prior to commencing negotiations on an Agreement, the Port shall engage legal counsel for the purpose of: (a) Advising the Port on the legality of specific proposed partnerships and the legal sufficiency of any Agreements; (b) Advising the Port on the legal procedures and practices that are related to implementing a Bridge Project in a Public-Private Partnership; (c) Assisting the Port in negotiating agreements and preparing documents related to a Public-Private Partnership; (d) Advising the Port on accounting, investment and tax requirements that apply to a Bridge Project the Port undertakes in a Public-Private Partnership; and (e) Advising the Port concerning any relevant federal securities or other laws and related disclosure requirements.. Negotiation and Approval of Agreements () Subject to its statutory authorities and this Rule, the Port may enter into one or more Agreements with Private Entities for a Bridge Project or one or more Bridge Project Activities. To the extent permitted by law, the Port may conduct negotiations regarding Agreements without public disclosure of the content of the negotiations or draft agreements, provided the final Agreement shall be subject to public disclosure. 0 () Subject to Commission approval, the Negotiation Team may enter into: (a) Direct Negotiations with one proposer for an Agreement for a Bridge Project or Bridge Project Activity. The Commission may establish terms and conditions for the negotiations, including setting an exclusivity period for such negotiations. The Commission in its discretion may, from time to time, extend such exclusivity period. If the negotiations are not subject to an exclusivity period, at any time during the negotiations, the Director may recommend and the Commission may approve to terminate the Direct Negotiations or commence Competing Negotiations with one or more other proposers. P a g e

22 (b) Competing Negotiations with multiple proposers for an Agreement for a Bridge Project or a Bridge Project Activity. Such Competing Negotiations may be sequential or concurrent, or a combination of sequential and concurrent. The Commission may set terms and conditions for the negotiations. During the course of Competing Negotiations the Director may from time to time recommend and the Commission may approve the termination of one or more of the Competing Negotiations, potentially resulting in Direct Negotiations with one proposer. If more than one Competing Negotiation successfully yields an Agreement, the Director shall evaluate the relative merits of the related Agreements and recommend a preferred Agreement for Commission approval. 0 () The object of Competing Negotiations is to maximize the Port s ability to obtain best value. Accordingly, the Competing Negotiations may include but shall not be limited to: (A) Informing proposers of deficiencies in their Submissions; (B) would like additional information; and Notifying proposers of parts of their Submissions for which the Port (C) Otherwise allowing proposers to develop revised Submissions that will permit the Port to obtain the best proposal. The scope, manner, and extent of negotiations with any proposer are subject to the discretion of the Port. In conducting these negotiations, the Port shall not (i) engage in conduct that unfairly favors any proposer over another; (ii) reveal to another proposer a proposer s Sensitive Business, Commercial, or Financial Information, or (iii) reveal to another proposer a proposer s price (or pricing information) or business terms. 0 () The Negotiation Team shall transmit any final Agreements to the Director for his or her review and recommendation to the Commission. As part of the Director s review, Legal Counsel shall review the legal sufficiency of the Agreement or Agreements and the legal history/organization of the Team. Following the Director s review and Legal Counsel s approval of the legal sufficiency of the Agreement or Agreements, the Director shall transmit his or her recommendation on the Agreement or Agreements to the Commission for its approval. () Following receipt of the Director s recommendation regarding an Agreement or Agreements, the Commission shall hold such work sessions, public hearings, briefings, and discussions on the Agreement or Agreements as the Commission finds beneficial to its deliberations. Following P a g e

23 0 0 completion of its review of the Director s recommendation and the Agreement or Agreements, the Commission may approve, reject, or offer amendments to the recommended Agreement, terminate any further consideration of the Agreement, or terminate the solicitation process.. Term Sheet () The Commission may require that the Negotiation Team first negotiate a Term Sheet with a proposer before undertaking substantial work on an Agreement. () If a Term Sheet is required by the Commission, the Negotiation Team shall seek to negotiate a draft Term Sheet. If the Negotiation Team: (a) Cannot reach agreement on a draft Term Sheet or make reasonable progress toward a Term Sheet within a reasonable time period, the Negotiation Team shall so notify the Director, and the Director shall forward the information to the Commission, which may then decide to continue negotiations or terminate negotiations with the proposer. (b) Reaches agreement on a draft Term Sheet, the Negotiation Team shall forward the draft Term Sheet to the Director. The Director may (i) direct the Negotiation Team to undertake further work on the draft Term Sheet before recommending it to the Commission, or (ii) recommend to the Commission that the draft Term Sheet be approved, rejected, or amended or that the negotiation process be terminated. () After receiving a recommendation from the Director, the Commission may hold such work sessions, public hearings, briefings, and discussions on the Term Sheet as the Commission finds beneficial to its deliberations. Following completion of its review of the Term Sheet the Commission may approve or reject a Term Sheet, direct the Director to continue negotiations of the Term Sheet based on certain terms or conditions approved by the Commission, or terminate the negotiations with the proposer. The Port shall make its action available to all proposers actively engaged in the proposal selection process at the time of the Commission s action.. Terms of the Agreement () The Agreement or Agreements shall define the rights and obligations of the Port and the respective proposer with regard to the Bridge Project or Bridge Project Activity. At a minimum, pursuant to ORS.0, an Agreement for a Bridge Project with a Private Entity must include: P a g e